COURT FILE NO.: CRIM J(P) 2347/12
DATE: 2015 12 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
C. Hackett, for the Crown
- and -
C.B.
L. Ali, for the Accused
Accused
HEARD: August 18-21, September 28 and 29, and October 14 and 15, 2015
REASONS FOR JUDGMENT
LeMay J.
[1] The accused, C.B. is charged with two counts of sexual assault, and two counts of sexual touching. The charges read as follows:
[C.B.] stands charged:
- That he, during a 2 month period, last, past and ending on or about the 31st day of August, 2009, at the City of Sault Ste. Marie in the Northern Region and elsewhere in the Province of Ontario, did unlawfully commit a sexual assault on [N.S], contrary to section 271(1) of the Criminal Code of Canada;
[C.B.] further stands charged:
- That he, during a 2 month period, last, past and ending on or about the 31st day of August, 2009 at the City of Sault Ste Marie in the Northern Region and elsewhere in the Province of Ontario, did unlawfully for a sexual touch [N.S], a person under the age of sixteen years, directly with a part of his body; to wit: his fingers, contrary to section 151 of the Criminal Code of Canada;
[C.B.] stands charged:
- That he, during a 2-month period, last, past and ending on or about the 31st day of August, 2009, at the City of Brampton in the Central West Region, did unlawfully commit a sexual assault on [N.S], contrary to section 271(1) of the Criminal Code of Canada;
[C.B] stands charged:
- That he, during a 2 month period, last, past and ending on or about the 31st day of August, 2009, at the City of Brampton in the Central West Region, did unlawfully, for a sexual purpose touch [N.S], a person under the age of sixteen years, directly with a part of his body; to wit: his fingers, contrary to section 151 of the Criminal Code of Canada.
[2] The accused is the half-uncle of the Complainant. The Complainant’s mother is the accused’s half-sister.
[3] The evidence from the Crown consisted of testimony from the Complainant and from the Complainant’s mother, C.S. The evidence from the Defence consisted of testimony from the accused himself.
[4] Based on the evidence elicited from the accused in his examination in chief, I required that the Complainant and her mother re-attend in order to ensure that they had an opportunity, under the principle in Browne v. Dunn, to respond to portions of the accused’s evidence. My reasons for this were generally explained to the parties when the issue arose. However, I will briefly elaborate on those reasons now.
[5] The Ontario Court of Appeal, in R. v. Quansah (2015 ONCA 237) considered the applicability of the Rule in Browne v. Dunn in the criminal context. The rule requires a party who is seeking to impeach a witness to give that witness the opportunity, while in the witness box, to explain the contradictory evidence. At paragraph 76, Watt J.A. stated that the rule is one of fairness, and is more particularly designed to ensure fairness to the witness whose credibility is attacked, the party whose witness is impeached and the trier of fact.
[6] During the course of the accused’s examination-in-chief, the Crown Attorney advised the Court on the record that she had a Browne and Dunn concern. I advised both counsel, in turn, that it appeared likely that there was a violation of the Rule in Browne v. Dunn and that I required Crown counsel to outline all of her Browne and Dunn concerns at the conclusion of the accused’s examination-in-chief.
[7] She did so, and advised me that she viewed the following as breaches of the Rule in Browne v. Dunn:
a) The fact that C.S. had shown the accused a tattoo on her upper thigh area, and had engaged in tickling with the accused was never put to C.S.
b) It was never put to C.S. that, when the parties were in Sault Ste. Marie, the accused made mice noises and tickled her when he was lying on the floor between the bed and the bathroom wall.
c) It was never put to the Complainant that the assault that she alleged took place in the laundry room happened in September rather than August, or that a conversation occurred but no sexual activity ensued.
d) It was never put to the Complainant that she was passing notes back and forth with her cousin on the drive back from Sault Ste. Marie.
[8] I am of the view that these were breaches of the Rule in Browne v. Dunn as counsel for the accused did not put any of them to either the Complainant or her mother when they were testifying. In reviewing my notes, it was also clear to me that there were other breaches of the Rule in Browne v. Dunn, but they were less important.
[9] Counsel for the accused was not completely clear about whether he wanted me to recall the Complainant and her mother as witnesses for the purposes of cross-examination. Crown counsel was clear that she did not wish me to do so because these witnesses lived more than two hours away and they are both (particularly the Complainant) vulnerable. She acknowledged that there could be consequences to the Crown’s case if these witnesses were not recalled, and she also acknowledged that others might take a different view about what should be done.
[10] I determined that these witnesses should be recalled for the following reasons:
a) The Rule in Browne v. Dunn is one of fairness, including fairness to the trier of fact. Having reviewed these issues, it appeared to me necessary (in the middle of the trial) to hear all of the evidence on these points. As the trier of fact, I felt uncomfortable having only one side of the evidence.
b) Some of these points - particularly the ones relating to the Complainant herself- involved evidence that was fundamental to determining the issues in the case. For example, if there had been a relationship between the Complainant and her cousin, it was possible that mistaken identity could be argued by the defence at the conclusion of the case.
[11] As a result, counsel for the accused cross-examined both C.S. and the Complainant a second time, with the second cross-examination being limited to the issues set out above. I have considered this evidence as if it were part of the original cross-examination. I will now set out the evidence.
Evidence
[12] In the sections that follow, I will outline the basic, undisputed background facts, and then set out the key components of the evidence provided by the Crown and the Accused. Once I have done that, I will set out the law, and my conclusions on this case.
[13] Before I set out the evidence, I would note that the Complainant was cross-examined by the accused’s counsel about a previous complaint of sexual assault that she had made to the police and had recanted. At trial, for detailed reasons provided on the record, I ruled that the Complainant could be cross-examined on the fact that she had made a complaint about her then step-father to the police, that she had recanted her complaint, and then had attempted to recant the recantation by asking the police to re-open the investigation into her step-father. However, I ruled that the accused could not ask questions about the specific allegations made by the Complainant.
a) Background Facts
[14] The Complainant was 20 years old at the time of the trial, which meant that she was born at the end of July in 1995. The Complainant lived with her mother, C.S., at all material times in this case. She currently lives with her boyfriend’s family.
[15] The accused is C.S.’s half-brother, and was 39 years old at the time of the trial. He first met the Complainant and her mother a number of years ago. There was a dispute in the evidence about how long ago this first meeting was, but I do not need to resolve that dispute for the purposes of this case.
[16] In any event, in March of 2009, C.S. asked the accused if he wanted to come and live with her, one of her other brothers, and the Complainant in a house in Brampton. The accused agreed to come and live with C.S.
[17] In the house there were three bedrooms upstairs, one for the Accused, one for C.S. and one for C.S.’s other brother P., who does not figure into the remainder of this case. The Complainant had a bedroom in the basement near the laundry room that was curtained off.
[18] The accused was employed for most of the time that he was living in P.S.’s house. He had some job changes, and a period of unemployment. I will discuss the relevant facts below.
[19] In December of 2009, the Accused abruptly moved to Ottawa, and did not give C.S. or the Complainant any notice that he was leaving. He contacted C.S. after he left in order to make arrangements to obtain his possessions.
[20] The Complainant and the accused were in contact over Facebook for the period between December of 2009 and July of 2010. In July of 2010, the Complainant had a Facebook exchange with the accused about sex. I will have more to say about that exchange below.
[21] In any event, within a couple of days of this exchange, the Complainant went to the police station and made a complaint that the accused had sexually assaulted her on two separate occasions in 2009. The accused was charged with the four counts set out above. These counts relate to the two incidents that the Complainant described, and I will now outline the undisputed facts relating to these two incidents.
b) The Trip to Sault Ste. Marie
[22] At the end of July, 2009, the Complainant turned 14. The Complainant, C.S. and the accused took a car trip to Sault Ste. Marie from Brampton. The trip first took them to Parry Sound, where C.S.’s sister lived. They spent a night in Parry Sound, and continued on to Sault Ste. Marie.
[23] From Parry Sound, C.S.’s nephew, D., travelled with them to Sault Ste. Marie and back to Parry Sound. During the drive, C.S. and the Accused were in the front seat, and the Complainant and D. were in the back seat. It is not completely clear to me, but I believe that they spent one night in Sudbury on the way to Sault Ste. Marie.
[24] When they got to Sault Ste. Marie, they stayed at a hotel for two nights. It is undisputed that there were two double beds in the hotel room, and that there was a bathroom immediately to the right of the entrance to the room. Once you entered the room itself, there was a sliding door on the opposite side of the room leading outside. It is also undisputed that the accused spent part of at least one night sleeping on the floor of the hotel room, between the bed and the bathroom wall.
[25] While in Sault Ste. Marie, they did some sightseeing and went to an Island. After the two nights were over, they travelled back to Sudbury, and then on to Parry Sound, where they dropped D. back at C.S.’s sister’s house. They then returned home to Brampton.
[26] The Complainant alleges that an assault took place at night in the hotel room in Sault Ste. Marie. The accused denies this. I will set out their separate recollections in the sections that follow.
c) The Incident in the Basement of the House
[27] As described above, the Complainant’s bedroom was in the basement of the house.
[28] It is clear that the accused went downstairs to do his laundry one afternoon or evening in August or September. The precise date is not known by the parties, but certain facts about this encounter are not disputed.
[29] The parties both agree that the Complainant told the accused that she was horny, and was thinking about sex, and about other guys. Both parties agree that the accused suggested to the Complainant that she finger herself, by which I understand that the accused was suggesting that the Complainant should insert her finger in her vagina.
[30] The Complainant then testified that she asked the accused if he wanted to come and help. She then stated that the accused did help her, and he performed digital penetration and oral sex on her until she asked him to stop a few minutes later. The accused denies this allegation.
[31] This brings me to the disputed evidence. I will set out the versions of each party separately.
d) The Crown’s Evidence
The Complainant
[32] The Complainant has bi-polar disorder, and a borderline personality disorder. She started to develop major depression around the age of 7, which was diagnosed when she was 10 years old. She has since been diagnosed with bi-polar disorder, as well as a personality disorder. It was not completely clear on the evidence which diagnosis currently applies to the Complainant.
[33] At the time she went to Sault Ste. Marie, the Complainant was taking a new medication which made her sleepy during the trip and, in fact, on the way back from Sault Ste. Marie, she testified that she spent a significant part of the trip sleeping.
[34] During cross-examination, the Complainant acknowledged that, if she did not take her medication, her judgment could become impaired, she could become hyperactive and it was possible for her to experience hallucinations.
[35] In Sault Ste. Marie, the Complainant recalled sleeping in the same bed as her cousin D. the first night. On the second night, the Complainant testified that her mother ended up in the same bed as D., which was the one closer to the window. The accused was sleeping on the floor between the bed closer to the bathroom and the bathroom wall, so the Complainant ended up sleeping on the bed closer to the bathroom.
[36] During the course of the night, the Complainant testified that the accused began to play with her hand. She then thinks that he got up on the bed and started to insert his finger into her vagina. She testified that she did nothing because of the shock she was feeling.
[37] She testified that the assault continued until C.S. and the Complainant’s cousin D. made noises in the next bed. At that point, the assault stopped. The Complainant’s explanation as to why the accused stopped the assault was not completely clear to me.
[38] On the return trip, the Complainant was sitting in the backseat with her cousin D. However, she did not recall any conversations with him. She stated that she slept the whole way back from Sault Ste. Marie. When she was recalled as a witness, she denied passing any notes to D., and she explained that she did not remember much about D. because she didn’t care much about him.
[39] Then, there is the incident in the laundry room. The Complainant testified to the basic outline of these events as set out above. Specifically, there was a discussion between her and the accused of a sexual nature, and he told her to finger herself.
[40] She then testified that she started to finger herself, and that she asked the accused if he wanted to come and help. He came over to her and started to insert his finger in her vagina and perform oral sex on her. When cross-examined about whether it was possible she only performed digital penetration on herself and the accused did not do anything she responded by stating that she found the idea of stimulating herself disgusting and that she had only done it to encourage the accused. When asked whether she had done it to encourage the accused, her response was “yes-it worked, didn’t it”.
[41] This assault went on for between five and ten minutes, after which time the Complainant told the accused to stop because she realized that this was probably wrong. The accused immediately stopped.
[42] At the time of the statement that she gave to Police, the Complainant remembers that the assault took place on August 5th, 2009 because it was shortly after her birthday. She does not remember the time of day. This statement was adopted by the Complainant in her examination-in-chief. As a result, I admitted it into evidence pursuant to section 715.1 of the Criminal Code. The question of what weight to give this evidence is a different issue, as noted in R. v. C.C.F. ([1997 1997 CanLII 306 (SCC), 3 S.C.R. 1183). I will address the weight to give this evidence when I conduct my analysis, below.
[43] Finally, there is the evidence I heard about the Complainant’s relationship with the accused. The Complainant would regularly hang out with the accused in his room in the house, and would regularly talk about school and her problems, which included the fact that she was experiencing bullying at school. He would give her advice about some of the issues in her life. She was happy talking to the accused because she felt like someone actually cared for her.
[44] After the Accused left the house in December of 2009, the Complainant and the Accused remained Facebook Friends, and they were on good terms. However, the Complainant acknowledged on cross-examination that she was upset that the Accused had moved out of the house, in part because she was not able to talk to him as much.
[45] In July of 2010, the Complainant told her biological father about both incidents. He suggested to her that she attempt to get the accused to confirm what happened by engaging him in a Facebook conversation, which she did.
[46] I was provided with a copy of what is alleged to be the Facebook conversation from the investigative file. It was marked as an exhibit. However, the Complainant was clear that the copy I was provided with was not complete, and that it had been modified in some way. The Complainant did say, however, that there had been a conversation over Facebook, and that it addressed the topic of sex. I will return to this evidence below.
[47] Finally, there is the issue of the Complainant’s step-father. The Complainant went to the police in December of 2008, when she would have been thirteen (13) years old, and complained that her step-father sexually assaulted her. She then retracted the allegation the next day, and was warned by the police that she should not invent allegations of this nature.
[48] During the course of the interview with Officer Barnhard about this case, the Complainant asked if she could re-open the complaint against her step-father. She testified that she felt she had to withdraw the complaint against her step-father because everyone always believed her step-father, she would not have been believed and the officer who interrogated her was mean.
[49] The Complainant’s step-father was no longer living with the Complainant’s mother, C.S., at the time that the accused moved into the house.
The Complainant’s Mother, C.S.
[50] C.S. testified that she is the Complainant’s mother, and the accused’s half-sister.
[51] C.S. confirmed the basic details about the trip to Sault Ste. Marie as set out above. In terms of the sleeping arrangements in the hotel in Sault Ste. Marie, C.S. testified that the accused was sleeping on the floor both nights.
[52] She also testified that the Complainant did not sleep on the floor. However, in her statement to the police, C.S stated that she was told by the Complainant that she was on the floor next to the accused.
[53] C.S. also stated that, when she woke up on the second morning in Sault Ste. Marie, she does not remember seeing either the Complainant or the accused in the room, and that she would have no reason to remember this.
[54] When recalled to give further testimony, C.S. also testified that she did not recall hearing any of the noises that the accused alleged he was making when he was scratching his hand against the wall.
[55] C.S. also testified that, on the way to Sault Ste. Marie, they spent a day and a night in Sudbury. However, in cross-examination, she seemed to suggest that they went directly from Parry Sound to Sault Ste. Marie. In cross-examination, she acknowledged that she might have had her days mixed up.
[56] C.S. testified that the Complainant was on a new medication at the time of the trip to Sault Ste. Marie for what had been diagnosed as a bi-polar disorder. C.S. testified that this medication made the Complainant quite sleepy.
[57] When she was recalled to provide further testimony, C.S. did not recall any incidents where D and the Complainant were passing notes back and forth on the way back from Sault Ste. Marie. She also does not recall stopping the car to read the notes.
[58] In December of 2009, the accused moved out without giving C.S. any warning about his departure at all. She was upset about his departure, both because the accused left her with bills to pay, and because the accused was her brother. However, in her testimony she claimed to have gotten over being upset.
[59] C.S. testified that her relationship with the accused was good until he lost his job. At that point, because of the bills they had to pay, C.S. was putting pressure on the accused to find a job. She was particularly concerned about finances at this point, as one of her jobs was ending in December of 2009.
[60] After the accused moved out, C.S. cashed one of his cheques from FedEx, for the sum of approximately $200.00. She did this by removing it from the envelope, and taking it to her bank. She was not clear on the details of how this cheque was honoured by her bank without the accused’s signature on it.
[61] C.S. acknowledged that the accused reported this incident to the police. When asked in cross-examination if she was upset because the accused had reported her to the police, she stated that she was happy that the issue had resolved, and happy that she was not charged. It is clear from the evidence as a whole that C.S. was upset by this incident.
[62] C.S. testified that she was present when the Complainant engaged in her Facebook conversation with the accused. C.S. testified that Exhibit 2 was the complete conversation, and that she did not have any input into the conversation, except to suggest to the Complainant at the end that she should ask the accused how he would look behind bars. The Complainant included this comment in her exchange with the accused.
[63] In terms of the evidence I heard during the Crown’s case, there was a voir dire about whether the accused’s statement to police could be admitted for the limited purposes of cross-examination if the accused testified. I made a ruling on that voir dire. However, none of the evidence that was in the voir dire was admissible for the purposes of the trial except for the one passage from the accused’s statement that Crown Counsel used for cross-examination purposes. Other than that one section which is discussed below, I have not considered the transcript of the accused’s interview with the police in reaching my decision.
e) The Defence Evidence
The Evidence of the Accused
[64] At the time of the trial, the accused was 39 years old. He confirmed the details of his relationship with the Complainant and C.S.
[65] The accused confirmed that he moved in to the same house as the Complainant and C.S. in March of 2009. At the time he moved in, he was contributing to the rent, paying the cost of a parking spot, and paying for one of the utilities bills. At the time that he moved in, he was working in logistics for a trucking company.
[66] He testified that they travelled to Sault Ste. Marie in early August, 2009, and stayed in a hotel. The sleeping arrangements on the first night were supposed to be him and D. in one bed and C.S. and the Complainant in the other bed. However, on the first night, D. did not want to share a bed with the accused, so he made a makeshift bed out of the chairs.
[67] In the meantime, the accused was finding it difficult to sleep on the bed as it was too hard. Ultimately he got down on the floor between the bed and the bathroom wall, and decided to sleep there. As a result, C.S. came over and slept on the bed that the accused had been using. The accused decided to annoy her by making mice sounds and other sounds against the wall with his hands. As a result, C.S. went back to the other bed and the Complainant decided to sleep on the bed next to where the accused was sleeping. The accused attempted to do the same things to the Complainant that he had done to C.S., but the Complainant was allegedly trying to hit the accused with her hand. C.S. asked what they were doing, and they stopped and everyone went to sleep.
[68] On the second night, the accused slept in one of the beds with C.S.. I did not hear any testimony from him about the other sleeping arrangements on this night. However, he testified that he heard noises from the other bed, where the Complainant and D. were sleeping.
[69] They then returned to Parry Sound to drop D. off at home, and then ultimately drove back to Brampton. During the car ride home, the accused testified that C.S. was concerned about notes being passed in the backseat between D. and the Complainant. As a result, there was a rest stop during which C.S. found an opportunity to search for the note.
[70] The accused testified that one day in August or September he was doing his laundry. The Complainant was in her room, and they were having a discussion about school and homework. Then, the Complainant made a comment about being horny, and the accused said nothing to her. The Complainant made the same comment a second time as the accused was going upstairs and he responded by telling her “go and finger yourself”.
[71] When asked to explain why he made this comment to the Complainant, he stated in part that the Complainant was sexually active and C.S. had gotten the Complainant a dildo. He testified that he was aware of the Complainant having relationships with older men. There was no application by the accused to introduce this evidence pursuant to section 276 of the Criminal Code, or the principles set out in R. v. Seaboyer (1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577). There was also no cross-examination of the accused on these issues.
[72] The accused testified that this conversation did not happen on August 5th, 2009, as he would have been working that day. He had originally testified that this conversation must have taken place in September. However, in cross-examination, he acknowledged that the conversation could have happened sometime in August of 2009.
[73] The accused testified that his relationship with the Complainant was just an uncle-niece relationship, and he was just trying to help her with her homework. He testified that he would not spend time with her at all during the week, and would only spend a limited amount of time with her on some weekends.
[74] The accused also testified that both the Complainant and C.S. would confide in him about the issues that they were having with each other. In addition, the accused testified that he wanted to be an inspiration to the Complainant. He liked the fact that she looked up to him, and that she confided in him. She told him things about school, including the fact that she was bullied, as well as discussing other personal problems with him.
[75] The accused acknowledged that, during the time period when he was unemployed, he would take the Complainant to appointments, including medical appointments. However, the amount of time that he spent with the Complainant did not go up significantly during the period when he was unemployed, even though he was at home a lot more.
[76] The accused testified that the Complainant and C.S. would sometimes, when he first moved in, tickle him. This bothered the accused because he did not like touching other people, and he viewed it as a form of flirting. Eventually the tickling stopped.
[77] The accused also testified that C.S. showed him a tattoo of a zebra on her upper thigh area. C.S. was recalled in reply in order to respond to this evidence, and agreed that this had happened. Having reflected on the evidence, I do not see this as being relevant to the issues I have to decide and I will not discuss it further.
[78] He also testified that, in the last part of the time he lived in the house, C.S. was making negative comments about his weight, the food he ate, his girlfriend at the time, his sister, and other things. This was upsetting to the accused, and he ultimately decided that he would move out, and return to Ottawa in December of 2009.
[79] Another part of the reason why the accused moved out of the house was the fact that he had lost his job in August of 2009. During his examination-in-chief, he had testified that he had always been employed while he lived in the house with C.S and the Complainant. He also testified that he “lost” his job with DB Shanker, a trucking company. In cross-examination he acknowledged that he had been fired by this company, and that there was a time period when he was unemployed.
[80] The Accused returned to Brampton a couple of weeks after he left for Ottawa. He confirmed that C.S. had taken one of his cheques from the mail after he left the house, and that she had left him a note. He reported this to the police, and they investigated the issue, but decided not to press charges. The accused eventually got his money back by having FedEx re-issue the cheque. He told FedEx that the cheque had been stolen.
[81] He testified that he had a telephone conversation with C.S. after this incident, and she was very angry about the fact that the accused had reported that she had cashed his cheque to the police. After this conversation, the accused did not have any further interaction with C.S. He continued to be in contact with the Complainant over Facebook.
[82] In terms of the Facebook conversation that was entered into evidence, the Accused testified that he did have a Facebook conversation with the Complainant. He denied many of the details of this conversation until he was cross-examined about it.
[83] In cross-examination, he argued with Crown counsel about what was in the documentation in an effort to avoid acknowledging that the conversation had taken place. Ultimately, however, he acknowledged that his statement to Officer Barnard about these events was truthful. As a result, he acknowledged that he had a discussion over Facebook with the Complainant in which they discussed sex, including the fact that the Complainant missed him because of the sexual experiences they were going to have.
[84] Finally, in terms of any sexual activity with the Complainant, the accused testified that he had thought about sex with the Complainant, but had never actually done anything of a sexual nature with her.
The Law
[85] This is a credibility case. Although I heard from C.S. in addition to the Complainant and the accused, she did not provide any testimony that dealt directly with whether these assaults took place. Her testimony, however, provides me with some evidence that assists in my assessment of reasonable doubt. I will review that evidence in the analysis section below.
[86] Accordingly, the legal principles that I must apply start with the well-known passage from R. v. W.(D.), where Cory J. states (at 758):
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[87] This is the law that governs this case.
[88] There are also three other principles that are important in my analysis of this case. First, the onus is on the Crown in this case, and the standard that the Crown must meet is proof beyond a reasonable doubt.
[89] Second, there is the question of whether time is an essential element to either of these offences. It was my understanding that Mr. Ali, on the part of the accused, had conceded that time was not an essential element. In any event, however, a review of the decision in R. v. B.(G.) (1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30) convinces me that there is no issue with respect to time in this case.
[90] There is no dispute as to when the trip to Sault Ste. Marie took place or who went on it. The only dispute is whether a sexual assault took place on this trip. As a result, for the reasons set out in B.(G.) (and particularly those in paragraphs 31 to 38), time is not an essential element to either offence. The time the offence took place is not critical, and the accused was not misled by any variance in the indictment. He was able to make full answer and defence to the charges relating to this trip.
[91] Although there is a disagreement between the accused and the Complainant about when the laundry room incident took place, I reach the same conclusions on this incident as I did on the incident involving the trip to Sault Ste. Marie. The accused was well aware that there was an incident in the laundry room. He simply has a different explanation of what happened. The fact that the accused and the Complainant recall the dates as being different does not make the date an essential element of the offence. The accused was not misled about the nature of the allegations, and he has had the opportunity to make full answer and defence.
[92] The third issue that arises is what use I can make of the facts relating to one incident in assessing the other incident. If I find the accused committed one of these assaults, I cannot use the fact of the conviction as evidence that the accused was more likely to commit the second offence. However, I can use evidence in general in my credibility analysis.
[93] One of the points that Mr. Ali raised in his argument was the fact that the Courts take the age of the Complainant into account. When an adult testifies about events that happened when they were a child, that witness’s testimony should be assessed according to the criteria that the Courts apply to adult witnesses. The presence of inconsistencies with respect to peripheral matters should be assessed on the basis of the age of the witness at the time that the events happened. This is the approach that I have adopted to the testimony of the Complainant.
[94] Counsel for the accused may have intended his submissions to address the fact that the accused was fourteen and had the capacity to consent. In this case, as a matter of law, the Complainant was under the age of 16 and the accused was more than five years older than her. In the result, then, she did not have the capacity to consent under the Criminal Code.
Analysis
[95] I am required to perform a W.D. analysis on the evidence relating to each incident. I will set the findings relating to each of those incidents out separately.
a) The Sault Ste. Marie Incident
[96] This is the incident that allegedly took place in the hotel room. The Complainant has testified that the accused was inserting his finger into her vagina while she was having her period, and the accused had blood on his hands in the morning as a result. The accused denies the entire incident.
[97] In the circumstances, I do not find the accused’s evidence to be believable as there are credibility problems in his evidence as a whole that I will discuss more fully below. It is clear from his evidence that there was some sort of interplay between himself and the Complainant during the course of the night. Something happened between them.
[98] However, both the accused’s evidence and the evidence taken as a whole raise a reasonable doubt as to whether the interactions between the Complainant and the accused included a sexual assault or sexual touching. In other words, I am not sure precisely what happened between them that night. I reach this conclusion for the following reasons:
a) The evidence of the sleeping arrangements in the hotel room was sufficiently unclear that I do not know, with any level of certainty, which person was sleeping where on each of the two nights that the accused and the Complainant spent in Sault Ste. Marie.
b) The Complainant’s explanation for why the accused stopped the assault is not clear and consistent, which means that I cannot determine whether there was a noise, or some other reason for the assault to have ended.
c) The Complainant was taking medication for a psychological condition at the time, and had recently changed medication. It was clear from the evidence that the Complainant was sleeping a great deal during the trip to Sault Ste. Marie. It is also possible that the medication was affecting her memory.
d) The details of the trip to Sault Ste. Marie are not clear. One example is that there was a trip to an island near Sault Ste. Marie and a trip on a railway train, but it was not clear when either of these trips happened. This results in there being a great deal of fog around the facts of this trip. It is difficult to know, with any certainty, precisely what happened or when.
[99] These factors raise a reasonable doubt. In the circumstances, therefore, I am acquitting the accused of the charges relating to this trip.
b) The Laundry Room Incident
[100] This incident arose out of separate facts, and a separate analysis must be conducted. First, I do not need to consider most of the evidence relating to the Sault Ste. Marie trip in reaching my decision. Where I have considered that evidence in reaching my decision, I have specifically identified it below.
[101] Second, much of the evidence about this incident is undisputed. Everything is agreed up to the point where the Complainant allegedly asked the accused to help her finger herself. As a result, I only need to determine whether I accept, beyond a reasonable doubt, the testimony of the Complainant about what happened after the accused told the Complainant to finger herself.
[102] My analysis of the incident in the laundry room starts with whether I believe the accused, or whether his testimony raises a reasonable doubt. I do not believe the accused, and his evidence does not raise a reasonable doubt for the following reasons:
a) His description of the relationship between himself and the Complainant was internally inconsistent. Sometimes he would testify that he wanted to be an “inspiration” to her. On other occasions, he would seek to minimize the amount of time that he allegedly spent with the Complainant, testifying that his conversations with her were irregular, that he spent most of his time in his bedroom and had limited contact with the Complainant.
b) His testimony about his employment situation was not completely candid. In examination-in-chief, he testified that he was employed at all times when he lived with C.S. and the Complainant. However, in cross-examination, he admitted that there was a period of approximately three weeks in August of 2009 when he was unemployed. This discrepancy is important because it means that he was in the house a lot more during the time when this incident allegedly took place. The accused, in his evidence, was attempting to minimize the amount of time that he spent with the Complainant.
c) More generally, in his testimony, he would make things sound more favourable to him than they actually were. Two examples of this will suffice. First, there is the fact that he was fired from DB Shankar, and had to be cross-examined to admit this point. Second, there was the testimony about the cheque that FedEx had reissued to him. He told them that it had been stolen, but did not explain all of the circumstances to FedEx when he had them reissue the cheque.
d) His testimony about the passing of notes on the trip home from Sault Ste. Marie also diminished his credibility. C.S. and the Complainant denied that there was any passing of notes, and I accept their testimony. The accused’s testimony was an effort to try and demonstrate that the Complainant was involved with her cousin.
[103] For these reasons, I do not believe the accused’s testimony and it does not raise a reasonable doubt in my mind. I note that there are other aspects of his testimony that support this conclusion. However, these aspects also involve testimony from the Complainant, so they are best considered in my analysis of whether the evidence, taken as a whole, raises a reasonable doubt.
[104] In conducting this analysis, I cannot accept the Complainant’s evidence as proof beyond a reasonable doubt merely because I have rejected the accused’s evidence and have decided that I do not believe that evidence. To do so would be to commit a legal error by changing the burden of proof (see R. v. Stewart ((1994) 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.)). I must review the evidence as a whole.
[105] My review starts with the Facebook discussion. It is clear from the evidence of both parties that there was a discussion about sex over Facebook in 2010. However, there were differences in their testimony. The Complainant acknowledged that the printed copy of the Facebook discussion was not complete. The accused, on the other hand, attempted to avoid acknowledging that he was involved in this conversation. However, when he was confronted with his statement to Officer Barnhard, the accused acknowledged that there was a discussion over Facebook between him and the Complainant about sex in the summer of 2010. The Complainant’s credibility was enhanced by her testimony on this point, and the accused’s credibility was weakened by his testimony.
[106] This brings me back to the question of what took place in the laundry room. These parties both agree on a number of essential elements about this incident, including the fact that there was a discussion where the Complainant said she was feeling horny. In this case, the Complainant’s possible mistake in terms of the date of the incident does not detract in any way from her credibility because both she and the accused acknowledge that an incident did take place. I would not necessarily expect the Complainant to remember the precise date that this assault took place. Further, the accused was equally definitive that it was in September, but also had to acknowledge on cross-examination that it could have taken place in August.
[107] On cross-examination, the accused stated that having a conversation with the Complainant about the fact that she was horny would have been “awkward”. However, he did not take any steps to try and deal with this conversation. Specifically, he did not:
a) Tell C.S. about the conversation, in spite of the fact that he had a relationship with C.S. in which he would discuss issues that C.S. was having with her daughter.
b) Stop having contact with the Complainant because of the awkwardness of this conversation.
c) Tell her that her comments are inappropriate because he is her uncle and she is only fourteen years old.
[108] If there was any semblance of reality to the accused’s statement that he did not perform digital penetration or oral sex on the Complainant or that he found the conversation with the Complainant about sex “awkward”, then it is likely he would have at least thought about taking one of these steps. When these facts are considered against the backdrop of the evidence as a whole, I am of the view that the fact that an assault took place in the laundry room is proven beyond a reasonable doubt.
[109] My conclusion is enhanced by the exchange that the accused’s counsel had with the Complainant near the end of her second cross-examination, set out at paragraph 40. In that exchange, the Complainant candidly acknowledges that she was trying to get the accused to participate in sexual activities with her, and that she succeeded in doing so.
[110] This brings me to the final issue that should be addressed. The Complainant made a complaint to the police about her step-father, and had recanted that complaint. Counsel for the accused argues that this diminishes the Complainant’s credibility. I disagree. I accept the Complainant’s reasons for recanting that complaint, which were that she did not think she would be believed, that everyone always believed her step-father, and that the police officer was “mean” to her. I hasten to add that there was no evidence of the police officer doing anything wrong in the investigation of this other allegation. This was only the Complainant’s impression of the Officer’s approach to her.
[111] In the circumstances, I am satisfied beyond a reasonable doubt of the following:
a) The Complainant told the accused that she was feeling horny.
b) The Accused suggested to the Complainant that she should finger herself if she was feeling horny.
c) The Complainant suggested to the Accused that he should help her.
d) The Accused performed digital penetration and oral sex on the Complainant for a period of some minutes, until the Complainant asked the accused to stop.
e) The Accused stopped when the Complainant asked him to.
f) The Complainant was fourteen (14) years old when this event took place.
[112] This brings me to considering the precise charges against C.B.
Disposition
[113] Counts 1 and 2 of the indictment relate to the incident in Sault Ste. Marie. I find the accused not guilty of both of these counts.
[114] There are two charges (Counts 3 and 4) relating to the incident in the laundry room. However, the charges are for different offences, and each charge has different elements that must be met. The foregoing reasons will illustrate that the findings can be applied to both offences, as the elements are all satisfied by the findings that I have made. However, it is convenient to set out the disposition on each charge.
[115] Count 3- Sexual assault- the accused is charged under section 271 of the Criminal Code. The reasons above illustrate that I have found, beyond a reasonable doubt, that:
a) C.B. applied force to the Complainant;
b) As a matter of law, the Complainant was under the age of sixteen years at the time, and as a result she did not have the legal capacity to consent.
c) The force that was applied was in circumstances of a sexual nature.
[116] As a result, I find the accused guilty of this charge.
[117] Count 4- Sexual touching- the accused is charged under section 151 of the Criminal Code. The reasons above illustrate that I have found, beyond a reasonable doubt, that:
a) The Complainant was under the age of sixteen at the relevant times.
b) C.B. touched the Complainant’s vagina with his fingers and his mouth
c) The touching was for a sexual purpose, as the accused touched her vagina for the purposes of the accused’s sexual gratification.
[118] Accordingly, I find the accused guilty of this charge.
[119] There may be an argument as to whether Kienapple v. R. (1974 CanLII 14 (SCC), [1975]1 S.C.R. 729) applies to my findings in this case, and I am prepared to hear submissions from counsel on that point.
___________________________
LeMay J.
Released: December 4, 2015
COURT FILE NO.: CRIM J(P) 2347/12
DATE: 2015 12 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
C.B.
Accused
REASONS FOR JUDGMENT
LeMay J.
Released: December 4, 2015